Description: Hearing fees that unconstitutionally impeded access to justice saved by scheme read in by Court in form of expanded power to grant exemptions from fees.

Background: The Appellant Intervenor was the Attorney General of British Columbia. The Respondent Intervenors were the Canadian Bar Association, British Columbia Branch, the Trial Lawyers Association of British Columbia, and West Coast Women’s Legal Education and Action Fund. This appeal dealt with a constitutional challenge to the rules regarding exemptions from court hearing fees. At trial, the Plaintiff had requested that the judge exempt her from paying hearing fees, despite the fact that she did not count as ‘impoverished’ or ‘indigent’ as required by Rule 20-5 of the Rules of Court, am. B.C. Regs. 119/2010, Sch. A, s. 34 (a); 112/2012, Sch. A, s. 4 (b):

Rule 20-5 – Persons Who Are Impoverished

Court may determine indigent status

(1) If the court… finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding…

The trial judge found that, although the Plaintiff was not impoverished and did not qualify for an exemption under Rule 20-5, the hearing fees for this family matter would have approached her family’s net income for a month. Such fees constituted an unacceptable barrier on access to justice for those who were not ‘impoverished’ yet for whom payment of hearing fees would nonetheless materially hinder their ability to have their case heard before a superior court. The trial judge ruled that the hearing fees were unconstitutional, and were not saved by the exemption in Rule 20-5.

Appellate Decision: The appeal was allowed and the Court held that rather than striking down the court hearing fees, an enlarged exemption should be read in to Rule 20-5. The Court considered the Supreme Court of Canada’s statement on access to justice in B.C.G.E.U. v. British Columbia (Attorney General),[1988] 2 S.C.R. 214 (“BCGEU”) (at 200): “There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.” In BCGEU, the Supreme Court of Canada also adopted the following statement of the British Columbia Court of Appeal’s ruling in that case: “Any action that interferes with such access [to justice] by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court” (BCGEU at 200).

Despite this strong statement, British Columbia (Attorney General) v. Christie, 2007 SCC 21 (“Christie”),affirmed that the legislature had the power to impose some conditions on access to the courts:

The legislature has the power to pass laws in relation to the administration of justice in the province under s. 92(14) of the Constitution Act, 1867. This implies the power of the province to impose at least some conditions on how and when people have a right to access the courts. Therefore [BCGEU] cannot stand for the proposition that every limit on access to the courts is automatically unconstitutional.

(Christie at paragraph 17.)

In the case of court hearing fees, the Court noted that they were designed to act as a barrier to the use of the courts, as an ‘incentive for efficient use’. The Respondents provided expert economic evidence that there was a large group of people who were not exempt from hearing fees, but who would not reasonably be able to pay them. Furthermore, it was likely that identifiable minorities, including First Nations people, immigrants, and the disabled, were over-represented among this group and therefore disproportionately affected by the imposition of hearing fees. The Court held that:

[w]hat makes hearing fees constitutionally suspect is in their potential to impede persons who cannot afford them. Wealthy individuals and corporations may not like paying the fees but they are unlikely to alter their litigation strategy because of them. In that sense, the government efficiency objective is invidious because the fees impinge only on the economically disadvantaged. Only they, not the well-to-do, will be discouraged from pursuing their rights in a hearing of sufficient length to do justice to the issues. However, an effective exemption defeats the invidious purpose but allows the cost recovery objective to be achieved.

(At paragraph 26.)

Hearing fees impeded many from access to justice, beyond those who qualified for an exemption under Rule 20-5. The constitutionality of hearing fees depended on an exemption which effectively removed that barrier to access. The indigency exemption was insufficient in that regard and could not save the fee scheme. However, the Court did not affirm the trial judge’s decision to strike down the fees altogether. Rather, Rule 20-5 was read in to include people who were ‘in need’: “not destitute or impoverished, [but] still in need of relief or assistance in order to have their case heard before a superior court” (at paragraph 31). This exemption respected the applicant’s dignity by considering their ability to afford the fees, rather than proceeding from an ‘archaic’ focus on their social status as ‘impoverished’ or ‘indigent’. The Court also considered that steps should be taken to make parties aware that “hearing fees will not obstruct their pursuit of justice if they cannot afford them” (at paragraph 39). In particular, the Court suggested that court forms be amended to specify the exemption from fees where parties make undertakings to pay them.

First and foremost, our client was delighted to be finally granted relief from paying some $3,600 in accumulated hearing fees. For over four years, she lived with the daunting prospect of paying for fees that would essentially render her penniless as a single, immigrant mother. She now has peace of mind in knowing that her pursuit of greater care and custody of her daughter through the courts did not—in and of itself—jeopardize her ability to provide such care.

In the broader perspective, we were disappointed in the ultimate result on the constitutional issue raised on appeal. We had hoped that the Court of Appeal would give greater consideration and weight to the reasoning in Pleau v. Nova Scotia, where the Supreme Court of Nova Scotia declared hearing fees unconstitutional because they put an escalating price on court time and are purposefully designed to hinder or impede access to the courts. In our view, it is difficult to reconcile the Supreme Court of Canada’s 1988 decision in BCGEU v. British Columbia (Attorney General), confirming that every Canadian citizen has the fundamental right to unimpeded access to the courts, with the notion of Canada’s superior courts operating as a default user-pay system of justice, subject to an individual establishing an entitlement to an exemption from court fees.

We are pleased, however, that the Court of Appeal agreed with the trial judge that hearing fees have the potential to interfere with the court’s core judicial function and that the existing indigency exemption was under-inclusive. The Court’s constitutional remedy has enlarged the scope of the Rule 20-5(1) indigency exemption to include not just those who are “impoverished” but also those who are “in need”. The exemption is thus now available to anyone who could not meet their everyday expenses if required to pay court fees. Since the enlarged exemption applies to all court fees and not only hearing fees, we see this practical outcome as a significant step forward in access to justice for low- and middle-income litigants.

Finally, we were also pleased that the Court of Appeal explicitly recognized that the burden of hearing fees falls disproportionately on women in family litigation, Aboriginal persons, disabled persons and new immigrants, and notified such persons that the courts will not permit unaffordable hearing fees to obstruct their pursuit of justice.

This case is about access to justice – and whether it is constitutionally protected right that is violated by the charging of hearing fees in civil cases. At stake for Ms. Vilardell was whether she, an unemployed professional immigrant woman, was required to pay the hearing fees; at stake for public policy (and consequently, for future litigants and for taxpayers) was the future of government fees charged for each day of court time.

The trial court was innovative in its constitutional approach, locating a violation in the intersection between ss.92(14) and 96 of the Constitution Act of 1867. Although overturned on appeal, the lower court decision in this case will, in my view, remain significant for future decisions because it broke new ground in its analysis of the constitutional protections for access to justice.

In B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, the Supreme Court of Canada found that rule of law necessarily included a right to access justice. In British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873, the SCC further examined the content of the constitutional principle of rule of law, and found that the rule of law did not support a general right to counsel. In Vilardell, McEwan J of the BC Supreme Court located the right to access justice in the Constitution Act of 1867, by finding that the access to s.96 courts – that is, federally appointed superior courts – was a fundamental premise of Canada’s constitutional arrangement. The provincial authority under s.92(14) to maintain the courts could not be used to impair the court in its ability to fulfill its proper role, which is what hearing fees did by imposing a financial deterrent to use of the courts. McEwan J. found that the indigency exemption could not cure the constitutional violation.

The Court of Appeal decision did not overrule much of this reasoning, despite granting the appeal. The Court of Appeal found that, were it not for the power of the courts to grant exemptions from paying hearing fees, the fees would be an “unconstitutional impediment to justice.” This is because of their potential to exclude from the courts those people who cannot afford them. While the exact locale of the constitutional violation is not named, the violation appears to be rooted in the constitutional principle articulated in both BCGEU and Christie – that is, the right to access justice encompassed by the rule of law. The Court departs from the Court below to find that an enlarged, functional approach to the indigency exemption cures the constitutional violation.

As the most recent foray into the constitutional origins of rule of law and access to justice, this decision leaves much to future interpretation. A constitutional protection for unimpeded access to s.96 courts remains to be probed. The depth of the protection for access to justice contained in the rule of law also remains unplumbed. And the potential to ground a right to access in s.7 of the Charter was left entirely off the map and holds much fertile ground for later exploration.

However, as a practical step in improving access to justice, this decision will result in more people – in particular, women, disabled people, First Nations people and immigrants, who are less likely be able to afford hearing fees – gaining access to the justice system without having to compromise their everyday cost of living. Ultimately, it is a victory for access to justice; an incremental step, no doubt, but still a step in the right direction towards an accessible justice system for all.